SANTA CLARA COUNTY / Experts assess Brown's move in De Anza case

Jim Herron Zamora, Chronicle Staff Writer

Published 4:00 am, Thursday, June 7, 2007

It's rare in the turf-conscious world of law enforcement for an attorney general's office to second-guess local prosecutors and file charges in cases where district attorneys have decided there was insufficient evidence.

Rarer still is what happened this week, when Attorney General Jerry Brown accepted Santa Clara County District Attorney Dolores Carr's invitation to review the investigation of the alleged gang rape of a 17-year-old girl by De Anza College baseball players at a house party.

The involvement of the state's top prosecutor can provide political cover for a district attorney if both agencies agree. But it can increase tensions if the prosecutors disagree.

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Examples of that include the state's prosecution of a San Francisco marijuana club owner after a 1996 raid, and its prosecution of the so-called Hillside Strangler, a serial killer who terrorized Los Angeles three decades ago.

"You don't get this in easy cases, you see it in difficult cases that are politically sensitive like this one," said Rory Little, a professor at Hastings College of the Law in San Francisco a former federal prosecutor. "I compliment the Santa Clara County D.A. for doing this. She is in a difficult spot. She chose not to charge in a case where many people are second-guessing her.

"If Brown backs her up, it's a smart move. If he goes forward with his own case, that could be difficult. It's unlikely they are going to second-guess a local prosecutor's decision unless they find she did something wrong."

Carr has endured a firestorm of criticism since deciding two weeks ago not to charge members of the Cupertino community college's baseball team in connection with the incident at a party at the San Jose home March 3.

She decided to seek Brown's assistance, after friends and supporters of the victim launched a petition drive to ask Brown to file charges. Santa Clara County sheriff's investigators have also insisted that a crime occurred at the party.

Brown said Thursday that he would review the entire Santa Clara County investigation to date and may interview new witnesses or review fresh evidence uncovered by deputies. He vowed a thorough review and said he has set no deadline for finishing it.

"We're going to take a very hard look at that case," Brown said. "We're not going to leave any stone unturned."

Under California law, Brown has wide discretion as the state's top prosecutor. He could have reviewed the case -- and perhaps prosecuted it -- without Carr's invitation. He could also ask Carr to reconsider her decision.

"There's no question that having this invitation is a good thing for her," said Professor J. Clark Kelso, an expert in California legal issues at McGeorge School of Law in Sacramento. "It's a sign that the system is working."

Brown's predecessor, Bill Lockyer, looked over the shoulder of local prosecutors to review several high-profile cases. But he used his authority sparingly, Kelso said.

In 2004, Lockyer reviewed the decision by San Francisco District Attorney Kamala Harris not to seek the death penalty for the accused killer of police Officer Isaac Espinoza.

The police union and others hoped Lockyer would take the case and seek capital punishment. But he refused, saying Harris did not appear to base her decision to spare suspect David Hill solely on her opposition to capital punishment.

By contrast, Lockyer's predecessor, Dan Lungren, ordered state agents to raid several San Francisco medical marijuana clubs in 1996 and prosecute the owner of one of them just before voters approved Proposition 215 to legalize marijuana for medicinal purposes.

Lungren's decision to prosecute Dennis Peron came despite angry objections from then-District Attorney Terence Hallinan, who later joined Peron at an anti-Lungren rally. Peron was not tried and most of the clubs reopened, with Hallinan's blessing.

Perhaps the most celebrated case in which a California attorney general has chosen to prosecute a case despite objections from a county prosecutor came in Los Angeles County in 1981.

John Van De Kamp, who was then the Los Angeles district attorney, moved to drop charges against suspect Angelo Buono, saying Buono could be convicted in the murders of 10 women solely on the testimony of his sometimes accomplice, his cousin Kenneth Bianchi.